Trial seems likely for $2.6 million suit

In the wake of a Wyoming Supreme Court ruling reversing a District Court decision involving a claim by Excel Construction Inc. that it is entitled to $2,688,173 from the Town of Lovell, Mayor Bruce Morrison vows that there most likely will be further litigation, as the town “has a lot to lose.”

The Supreme Court on Tuesday, Dec. 20 issued its opinion regarding Basin-based Fifth Judicial District Court Judge Steven R. Cranfill in the breach-of-contract case. The Town of Lovell through its attorney contends that the project was left incomplete.

Cranfill reviewed Excel’s position, and concluded that his court did not have jurisdiction. Stated the justices, “We reverse and remand for further proceedings consistent (with their opinion that) the District Court has jurisdiction to rule on Excel’s motion for leave to file a second amended complaint.”

The five justices who reviewed the appeal brought by Excel, a Wyoming corporation that was the contractor for the original (North) phase of the Lovell Water and Sewer Infrastructure Project, wrote: “The District Court dismissed Excel’s claims for failure to submit a governmental notice of claim that met the itemization requirements of the Wyoming Constitution and the Wyoming Governmental Claims Act. We reverse.”

“We are going to fight them (Excel),” stated the mayor. “We would prefer to not give Excel the $2.6 million, and the council has been awaiting the Supreme Court decision. We have about $800,000 for the work that was done. As a council I believe that we will go forward with litigation” and that the matter “will just go to trial.” Regarding the Dec. 20 announcement, Morrison added, “We were hoping for a little better Christmas present than that.” The council’s next regular meeting is planned for Tuesday, Jan.. 10 at 7 p.m. in Town Hall.

Neither Tracy Copenhaver, the attorney representing the town in the case, nor Lovell Town Attorney Sandra Kitchen, were available for comment in time for this issue. They both are with the Powell firm of Copenhaver, Kath, Kitchen & Kolpitcke. Excel was represented before the Supreme Court by attorney Patrick J. Murphy of Casper.

Regarding the infrastructure project, for which the town contends that Excel did not perform as required by the contract documents, the first shot was fired on Feb. 5, 2008 when Excel filed a breach-of-contract suit against the Town of Lovell, and the bonding company for the project, Travelers Casualty & Surety Co. of America in the Fifth Judicial District Court. This occurred in connection with the dispute between the town and the contractor after the town refused to grant “substantial completion” for the project.

Excel learned on July 10, 2009, wrote the Supreme Court, “that the Notice of Claim it served on the Town of Lovell did not have the referenced Exhibit A attached to it.” (The exhibit listed the firm’s claimed damages for the total of $2.6 million.) The justices continued that, “On that same date, Excel notified the town of the omission and served on it a First Amended Notice of Claim that included the previously omitted Exhibit A.

“On June 17, 2010,” wrote the justices, “The Town of Lovell filed a summary judgment motion. The town alleged it was entitled (to the judgment) on three separate grounds: 1) Excel failed to timely file with the town a Notice of Claim with the required full itemization of damages; 2) Excel failed to serve its Notice of Claim on the proper town officer, specifically, the town treasurer; 3) Excel’s first Amended Complaint failed to plead compliance with the Beaulieu II requirements.” The latter refers to a high court case in which it was “held that the failure of a complaint in a governmental claims action to allege compliance with both the constitutional signature and certification requirements of Wyo. Const. Art. 16, § 7 and the statutory filing requirements of Wyo. Stat. Ann. § 1-39-113 prevents the district court from acquiring subject matter jurisdiction over the claim.” Essentially, the high court found that the three items in the summary judgment motion were invalid.

Continuing, the Supreme Court wrote, “On July 8, 2010, Excel filed a Motion for Leave to File a Second Amended Complaint wherein it sought ‘leave to file its Second Amended Complaint to reassert (and to expound upon) allegations originally contained in its original Complaint, but that were accidently [sic], inadvertently, unknowingly, and unintentionally deleted when plaintiff later filed its Amended Complaint’.”

Furthermore, wrote the justices in part, “The District Court finally concluded that due to Excel’s failure to comply with the Governmental Claims Act in its submission of its original Notice of Claim, the court had no subject matter jurisdiction and could not rule on Excel’s Motion for Leave to File a Second Amended Complaint, and granted the Town of Lovell’s Motion to Dismiss and/or Motion for Summary Judgment and dismissed Excel’s claims against the town.”

However, as the Supreme Court finds that the lower court does have jurisdiction, the case is returned to the Fifth Judicial District. “No one knows when there will be a trial,” said Morrison. “We just have to wait and see.”